(HC) Hubbard v. Gipson

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 ZANE HUBBARD, ) Case No.: 1:19-cv-01379-JLT ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION TO 14 CONNIE GIPSON, ) DISMISS PETITION FOR WRIT OF HABEAS 15 Respondent. ) CORPUS ) 16 ) [TWENTY-ONE DAY OBJECTION DEADLINE] ) [17] 18 On July 15, 2019, Petitioner filed this writ of habeas corpus in the District of Columbia. (Doc. 19 1.) The District of Columbia transferred the petition to the Northern District of California on July 24, 20 2019. (Doc. 3.) The Northern District of California then transferred the petition to this Court on 21 October 1, 2019. (Doc. 11.) For the following reasons, the Court will recommend the petition be 22 DISMISSED. 23 DISCUSSION 24 A. Preliminary Review of Petition 25 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review 26 of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears 27 from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 28 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus 1 should not be dismissed without leave to amend unless it appears that no tenable claim for relief can 2 be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 3 B. Successive Petition 4 A federal court must dismiss a second or successive petition that raises the same grounds as a 5 prior petition. 28 U.S.C. § 2244 (b)(1). The court must also dismiss a second or successive petition 6 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 7 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 8 diligence, and these new facts establish by clear and convincing evidence that but for the constitutional 9 error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 10 U.S.C. § 2244 (b)(2)(A)-(B). However, it is not the district court that decides whether a second or 11 successive petition meets these requirements. 12 Section 2244(b)(3)(A) provides: "Before a second or successive application permitted by this 13 section is filed in the district court, the applicant shall move in the appropriate court of appeals for an 14 order authorizing the district court to consider the application." In other words, Petitioner must obtain 15 leave from the Ninth Circuit before he can file a second or successive petition in district court. See 16 Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive 17 petition unless the Court of Appeals has given Petitioner leave to file the petition because a district 18 court lacks subject-matter jurisdiction over a second or successive petition. Burton v. Stewart, 549 19 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 20 As noted by the Northern District of California in its order of transfer, this petition would have 21 to be dismissed as a second or successive petition that has not been authorized by the Court of Appeals 22 because a prior federal habeas petition directed to the same convictions was denied on the merits. 23 (Doc. 11 at 1); see Hubbard v. Gipson, 1:13-cv-01758-LJO-JLT. 24 The Court finds that the instant petition is “second or successive” under 28 U.S.C. § 2244 (b). 25 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file his 26 successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s renewed 27 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. at 28 157. 1 C. Civil Rights Claims 2 It appears that Petitioner is also making complaints concerning the conditions of confinement. 3 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or duration” of 4 his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 5 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper 6 method for a prisoner to challenge the conditions of confinement. McCarthy v. Bronson, 500 U.S. 7 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner’s civil rights claims are not cognizable in a 8 federal habeas action and must be dismissed. Petitioner must seek relief for his complaints by way of 9 a civil rights action. 10 In Nettles, the Ninth Circuit held that a district court has the discretion to construe a habeas 11 petition as a civil rights action under § 1983. Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016). 12 However, recharacterization is appropriate only if it is “amenable to conversion on its face, meaning 13 that it names the correct defendants and seeks the correct relief,” and only after the petitioner is 14 warned of the consequences of conversion and is provided an opportunity to withdraw or amend the 15 petition. Id. Here, the Court does not find recharacterization to be appropriate. Petitioner does not 16 name the proper defendants and the claims are not amenable to conversion on their face. Accordingly, 17 the Court should not exercise its discretion to recharacterize the action. 18 ORDER 19 Accordingly, the Court DIRECTS the Clerk of Court to assign a district judge to the case. 20 RECOMMENDATION 21 For the foregoing reasons, the Court RECOMMENDS that the petition be DISMISSED. 22 This Findings and Recommendation is submitted to the United States District Court Judge 23 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 24 Local Rules of Practice for the United States District Court, Eastern District of California. Within 25 twenty-one days after being served with a copy, Petitioner may file written objections with the Court. 26 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 27 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 28 1 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive 2 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). [3] 4 IT IS SO ORDERED. 5 Dated: October 26, 2019 /s/ Jennifer L. Thurston 6 UNITED STATES MAGISTRATE JUDGE